Allahabad High Court
Shreya Mishra vs State Of U.P. And Another on 5 August, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:132426 Court No. - 64 Case :- APPLICATION U/S 482 No. - 24213 of 2024 Applicant :- Shreya Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Prabodh Dubey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Arvind Prabodh Dubey, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. This application under Section 482 Cr.P.C. has been filed by charge sheeted accused Shreya Mishra challenging the order dated 02.07.2024 passed by Special Judge (PC Act), Court No.-5/Additional District and Sessions Judge, Gorakhpur in Sessions Trial No. 686 of 2022 (State Vs. Shreya Mishra), under Section 7 of The Prevention of Corruption Act, Police Station-Gauriganj, District-Amethi, whereby the application dated 25.04.2024 under Section 91 Cr.P.C. filed by applicant (Paper No. 53-Kha) with the prayer that the desired documents may be got summoned by Court, has been rejected.
4. Record shows that in respect of an incident, which is alleged to have occurred on 17.06.2021, a prompt FIR dated 17.06.2021 was lodged by first informant-Inspector Bhanu Pratap Singh and was registered as Case Crime No. 0250 of 2021, under Section 7 of The Prevention of Corruption Act, Police Station-Gauriganj, District-Amethi. In the aforesaid FIR, applicant-Shreya Mishra, District Panchayat Raj Officer, Amethi has been nominated as solitary named accused.
5. The gravamen of the allegations made in the FIR is to the effect that applicant-Shreya Mishra is working as District Panchayat Raj Officer at Amethi. The complainant Sushil Kumar (Safai Karmchari/Sweeper) was reinstated in service but on the original pay scale. The applicant is alleged to have made a demand of 50% of the arrears of salary paid to complainant. The complainant has already been paid part of the arrears of salary, which is Rs. 2,03,44,500/-. A further sum of Rs. 8 lacs towards balance of the arrears of salary is pending payment to the complainant. The applicant is alleged to have made a demand of Rs. one lac from the complainant. In view of above, the complainant made a complaint upon which, a police trap was laid on 17.06.2021. Applicant-Shreya Mishra was caught red handed with cash worth Rs. 30,000/- (bribe money) in the denomination of Rs. 2,000/- currency notes. The result of chemical test so conducted qua the recovery made from the person of applicant is also against applicant.
6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by him, during course of investigation, he came to the conclusion that offence complained of against applicant is fully established. Accordingly, Investigating Officer, submitted the police report dated 13.03.2022 in terms of Section 173(2) Cr.P.C., whereby applicant-Shreya Mishra has been charge sheeted under Section 7 of The Prevention of Corruption Act.
7. Upon submission of aforementioned police report, cognizance was taken upon same by Court concerned and simultaneously, applicant was summoned by Court below to face trial in Sessions Trial No. 686 of 2022 (State Vs. Shreya Mishra), under Section 7 of The Prevention of Corruption Act, Police Station-Gauriganj, District-Amethi.
8. It appears that after the charges were framed against accused-applicant by Court below, in exercise of it's jurisdiction under Section 211 Cr.P.C., the trial of applicant commenced before Court below. Bhanu Pratap Singh, Trap Team Incharge deposed before Court below as PW-1. However, only his statement-in-chief was recorded.
9. At this juncture, the applicant, who is a charge sheeted accused, filed an application dated 25.04.2024 (Paper No. 53-Kha), under Section 91 Cr.P.C. praying therein that Guest Entry Register of Hotel International, District-Amethi, where the trap team is alleged to have stayed in Room No.-9 be summoned so that complete justice is done to the accused-applicant.
10. According to the applicant, the document sought to be summoned is necessarily required to do justice to the applicant. It is only on the basis of said document that the prosecution case can be dislodged. Furthermore, the said document is a private document in the custody of a private person, and can be destroyed at any point of time. Applicant has no control on the proprietor of the said Hotel and therefore, no such process can be adopted by the applicant requesting the owner of the said Hotel to retain the aforesaid document or not to destroy the same.
11. In support of above, reliance was placed upon the judgment of this Court and Madhya Pradesh High Court in Application U/s 482 Cr.P.C. No. 6814 of 2024 (Pradeep Garg @ Pradeep Kumar Garg Vs. CBI) decided on 02.04.2024 and Misc. Criminal Case No. 45478 of 2021 (Ajay Nagore Vs. State of Madhya Pradesh) decided on 23.09.2021.
12. Aforementioned application filed by applicant was opposed by the Special Public Prosecutor. On behalf of the prosecution, it was contended that aforementioned application filed by accused is not liable to be accepted at this stage. The accused is free to file evidence at the stage of defence evidence. There is no concern of the room of the Hotel in present trial. Accused is free to file all documents, which he considers necessary. The burden of proof regarding innocence of accused-applicant is upon accused himself and the said burden is to be discharged by the accused himself. The documents pertaining to the action of the Trap Team have not been made part of the case diary. No averment regarding above has been made in paragraph 6 of the application either. However, as per the averments made in the application, it appears that accused is himself in possession of the desired documents. The proceedings of the Trap Team are descreet in nature and therefore, there is no possibility of the room of Hotel International being booked in the name of any member of Trap Team. The prosecution cannot be compelled to give evidence against its wish.
13. To lend legal support to his submissions, the Special Public Prosecutor relied upon the judgment of Supreme Court in State of Rajasthan Vs. Swarn Singh@ Baba, 2024 LiveLaw (SC) 136, wherein the Bench considered the earlier judgment in State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 and also the subsequent judgment in Nitya Dharmananda @ K. Lenin and Another Vs. Gopal Sheelum Reddy @ Nithya Bhaktananda and Another, (2018) 2 SCC 93.
14. Ultimately, Court below upon appraisal and evaluation of the allegations made in aforementioned application and the submissions urged by the counsel for the parties, Court below came to the conclusion that the application dated 25.04.2024 (Paper No. 53-Kha) filed by the accused-applicant is liable to be rejected. Accordingly, the Special Judge (PC Act), Court No.-5/Additional Sessions Judge, Gorakhpur rejected the aforementioned application, vide order dated 02.07.2024.
15. In arriving at the said conclusion, the Court below observed that in the case of Pradep Garg (Supra), it has been held that an accused is free to summon any document or adduce any document at the stage of defence evidence. However, the Apex Court in the case of State of Rajasthan Vs. Swarn Singh@ Baba (Supra), has held that if any document is necessary or desirable for the defence of the accused, his entitelment to seek such document under Section 91 Cr.P.C. would ordinarily not come till the stage of defence. In the aforesaid judgment, the Bench has reiterated the earlier Three Judges Bench judgment of the Supreme Court in State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568.
16. Thus feeling aggrieved by the above order dated 02.07.2024, applicant-Shreya Mishra has now approached this Court by means of present application under Section 482 Cr.P.C.
17. Mr. Arvind Prabodh Dubey, the learned counsel for applicant submits that the order impugned in present application under Section 482 Cr.P.C. is manifestly illegal and therefore, liable to be set aside by this Court. According to the learned counsel for applicant, the document desired to be summoned by the applicant is necessary to do complete justice to accused-applicant. The document, which was sought to be summoned by the applicant by means of aforementioned application was not made part of the case diary as is explicit from the recital occurring in the order impugned itself. Furthermore, no prejudice was goinig to be caused to the prosecution, in case, the document desired to be summoned by applicant were summoned by Court below. According to the learned counsel for applicant, the anxiety of the applicant is that the document, which is sought to be summoned is in possession and control of a private person. Therefore, no such steps can be taken by the applicant for preserving the same till the stage of defence evidence arrives. In the submission of the learned counsel for applicant, the application filed by applicant for summoning the requisite document should have been allowed by Court below. After the document sought to be summoned was received by the Court, the cross examination of PW-1 should have been deferred and the applicant should have been granted the opportunity to cross examine PW-1 at the stage of defence evidence with reference to the said document.
18. On the above conspectus, he, therefore, contends that present application is liable to be allowed.
19. Per contra, the learned A.G.A. has vehemently opposed the present application. He submits that order impugned in present application is perfectly just and legal. No illegality has been committed by Court below in passing the order impugned. According to the learned A.G.A., it is an admitted fact that the trial of applicant pending before Court below is at the stage of prosecution evidence. A prosecution witness cannot be cross examined with reference to a document, which is sought to be summoned by the accused by the Court at this stage. In view of the authoritative pronouncment by the Three Judges Bench of Apex Court in State of Orissa Vs. Debendra Nath Padhi (Supra), remedy of the applicant is to approach the Court below at the stage of defence evidence i.e. Section 233 Cr.P.C. On the above premise, the learned A.G.A. contends that no question of law and fact is involved in present application. Consequently, the same is liable to be dismissed by this Court.
20. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that Court below has itself recorded a finding that the documents pertaining to the activities of the Trap Team have not been made part of the case diary. The application filed by the applicant under Section 91 Cr.P.C. has been rejected primarily on the ground that it shall be open to the accused to pray for summoning of requisite document by Court at the stage of defence evidence.
21. The issue as to at what stage, an accused is entitled to seek summoning of a document by the Court in support of his defence came up for consideration for the first time in the case of State of Orissa Vs. Debendra Nath Padhi (Supra). The Bench made following observations in paragraph 25 of the report, which have material bearing on the issue involved in present application. Consequently, paragraph 25 of the report is extracted herein below:-
"25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of police station can also direct production thereof."
22. Subsequently in Rajesh Talwar and Another Vs. CBI and Another, (2014) 1 SCC 628, Court held that if the application under Section 91 Cr.P.C. has been filed at a very belated stage, the same is not liable to be entertained.
23. However, thereafter, the Apex Court in the case of Nitya Dharmananda @ K. Lenin and Another Vs. Gopal Sheelum Reddy @ Nithya Bhaktananda and Another, (2018) 2 SCC 93 has held that Court is not debarred from summoning any such document, which has notbeen made part of the charge sheet but if the said material is of sterling quality and has been withheld by the Investigator/Prosecutor then the Court is not debarred from summoning or relying upon same. Paragraphs 7 and 8 of the report are relevant for the controversy in hand:-
"7. In Hardeep Singh Etc. versus State of Punjab and ors. Etc. (2014) 3 SCC 92 a Bench of five-Judges observed:
"19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."
8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet. It does not mean that the defence has a right to invoke Section 91 Cr.P.C. de hors the satisfaction of the court, at the stage of charge."
24. Ultimately, in State of Rajasthan Vs. Swarn Singh@ Baba (Supra), the Court considered the earlier judgments in State of Orissa Vs. Debendra Nath Padhi (Supra) and also the subsequent judgment in Nitya Dharmananda @ K. Lenin and Another (Supra). Upon consideration of aforementioned judgment, Court ultimately, delineated it's view in paragraph 7 of the report, which is as under:-
"7. The learned counsel for the respondent has relied upon the decision in the case of Nitya Dharmananda Vs. Gopal Sheelum Reddy, (2018) 2 SCC 93, to submit that the court being under the obligation to impart justice, is not debarred from exercising its power under Section 91 Cr.P.C., if the interest of justice in a given case so requires. However the said decision is not helpful to the respondent. In the said decision also, it has been observed that the accused cannot invoke and would not have right to invoke Section 91 Cr.P.C. at the stage of framing of charge. In view of the law laid down by the Three Judge Bench in State of Orissa Vs. Debendra Nath Padhi, (supra), we are inclined to accept the present appeal."
25. In view of above, no infirmity/illegality can be attached to the conclusion drawn by Court below that accused-applicant can seek summoning of the desired document, which admittedly is not part of the charge sheet only at the stage of defence evidence i.e. Section 233 Cr.P.C.
26. However, the Court finds that the Court below has not deferred the cross examination of PW-1 in the light of above.
27. Consequently, the present application is disposed of finally with the direction to Court below that the cross examination of PW-1 shall be deferred. Only after the desired document is summoned by Court below at the stage of defence evidence that the accused-applicant shall be entitled to cross examine the prosecution witness i.e. PW-1.
28. However, considering the fact that the documents desired by the applicant are in possession of a private person and the applicant cannot take any step in law to get the said documents preserved, the Court below is directed to take steps as may be permissible in law to get the desired documents preserved till the stage of defence evidence. The Court below, if need be, shall further direct the Hotel concerned through it's proprietor to preserve the document desired by the accused till the stage of defence evidence.
29. With the aforesaid observations, this application is finally disposed of.
Order Date :- 5.8.2024 Vinay